The PERM Labor Certification application imposes specific requirements (listed below) both on the employer and the prospective employee. The employer must comply with the PERM process requirements and adhere to the PERM Regulation.
The employer who files the application on behalf of the alien must attest to the following:
- The position should be a full-time job offer located within the U.S.;
- The position should be a bona fide job offer available to U.S. workers;
- Job requirements should not be tailored to the alien worker’s qualifications. In other words, the employer must establish that the job opportunity is described without unduly restrictive job requirements, unless adequately documented as arising from business necessity;
- The offered wage must meet prevailing wage requirements. The wage must be equal to or greater than the prevailing wage for the occupation in the area of intended employment, as the 5% deviation is no longer acceptable;
- There are no qualified U.S. workers able, willing, qualified and available to accept the job offer through the specific recruitment processes; and
- Employment of the alien will not adversely affect the wages and working conditions of U.S. workers.
Prospective Employee Requirements
The prospective employee who benefits from the application must attest to the following:
- He/she meets the educational and work requirements of the employment position at the time the Labor Certification is filed;
- He/she maintains a valid U.S. status if living within the U.S.
To promote startup enterprises, reduce barriers and accelerate growth for job-creating entrepreneurs, starting in 2011, the USCIS allows foreign entrepreneurs to apply for labor certification under EB-2 if they satisfy the existing requirements.
In Labor Certification, the U.S. sponsoring employer is the petitioner and the prospective alien employee is the beneficiary. Although not explicitly permitted in the regulations, the DOL and the USCIS informally allow sponsoring employers to apply for Labor Certification and file an Immigration Petition on the basis of prospective employment. In other words, it does not matter whether the alien works for the sponsoring employer during the application process or after it is approved. Meanwhile, the sponsoring employer does not necessarily have to continue to employ the alien. However, the foreign employee has to work for a reasonable period of time for the sponsoring employer after receiving permanent residency.
Effective July 16, 2007, the employers must pay all the costs of preparing, filing and obtaining labor certification, including recruitment and attorney’s fees. The employers are no longer permitted to transfer the costs incurred in the labor certification process to the alien. The DOL rules state that an employer is prohibited from receiving payment of any kind as an incentive or inducement to file, or as reimbursement for the costs of preparation or filing of an application for labor certification. This includes the employer’s attorney’s fees. An employer also cannot recoup the costs by deducting those amounts from the alien’s wages, salary or benefits. In other words, the employer and alien must each pay their own attorney’s fees, and the alien is not allowed to pay the employer’s portion of those attorney fees.
The PERM process is an extremely complicated process. It involves a thorough review of the alien beneficiary’s qualifications, the position offered, the employment setting, the wording of the job requirements which can have consequences, the detailed arrangement and follow-up of the recruitment schedules, the compliance of recruitment procedures, and the proper documentation and technical information in the forms. The general process for filing a PERM labor certification is described below:
- Employer agrees to sponsor the PERM Labor Certification for the alien beneficiary;
- Employer retains an immigration attorney for filing PERM Labor Certification, and establishes Attorney-Client Relationship;
- Attorney collects information needed for labor certification, including detailed job description, petitioning employer information and alien beneficiary’s qualifications and work experience;
- Employer registers on the PERM online filing system following attorney’s instruction and assigns a sub-account to the attorney;
- Attorney communicates with the employer and alien beneficiary. Attorney then designs job descriptions and determines the requirements for the position;
- Attorney obtains prevailing wage determination from the National Prevailing Wage and Helpdesk Center (NPWHC);
- Attorney designs the job recruitment advertisements including job title, job duties and job descriptions;
- With assistance from the attorney, the employer will arrange the recruitment schedule and advertise the job posting with the proper internal and external media in accordance with the DOL provisions;
- Employer screens and reviews applicants, and conducts phone or on-site interviews if the applicant meets the minimum job requirements;
- If there is no qualified US worker for the position, the employer is eligible to submit the PERM application;
- Recruitment activities must be completed within 30-180 days before submitting the application and the employer should document all recruitment activities;
- Attorney will work on the recruitment reports based on the recruitment documents provided by the employer;
- Attorney will prepare the online PERM application and provide a copy to the employer and the alien beneficiary for review before filing;
- Attorney will submit the online PERM Labor Certification Application upon approval from the employer and the beneficiary. The date the labor certification application is received by the DOL is known as the filing date and is used by USCIS and the Department of State as the priority date;
- Attorney receives an e-mail from the DOL confirming the PERM Labor Certification has been received and submitted for processing;
- If the DOL agrees that the employer conducted the required recruitment and found no qualified and available U.S. workers for the position, the DOL usually certifies (approves) the PERM Labor Certification within 45-60 days from the date of filing, although some cases may be approved in just a couple of days;
- If the DOL finds the labor certification application suspicious or selects the application for random checking, the DOL may choose to audit the application;
- If the DOL chooses to audit the application, the employer should submit the required documents to the DOL within 30 days. If the employer fails to submit documents within 30 days, the DOL will not only deny the specific application but also may require future applications from the same employer to go through a supervised advertisement and posting process;
- After reviewing the employer’s documents submitted in an audited case, the DOL may certify the labor certification petition, deny the petition, or ask the employer go through the supervised recruitment process.